On February 2 and 3, 2010, the Department of Transportation (DOT) published a series of notices regarding the Disadvantaged Business Enterprise (DBE) and Airport Concession Disadvantaged Business Enterprise (ACDBE) programs. In a notice of proposed rulemaking, DOT proposed to remove the “sunset” provision in the ACDBE rules and solicited comments on possible changes in the rules to better achieve the ACDBE program’s objectives. Comments on changes in the rules must be submitted by November 1, 2010. In another notice, DOT amended the DBE rules to require recipients of financial assistance to submit DBE goals every three years. The previous rule required that DBE goals be submitted annually. In the third notice, DOT requested comments on its plan to extend the requirement of the DBE rules that recipients of financial assistance maintain a DBE directory and report on DBE participation. The deadline for comments is April 5, 2010.
 

The Obama Administration released its transportation budget for fiscal year 2011 on February 1, 2010, calling for $79 billion in transportation funding, an increase of two percent over the FY2010 budget.  The proposal’s stated priorities are to improve transportation safety, invest for the future, and to promote livable communities.  Highlights of the proposal include $4 billion to create a national infrastructure bank, the National Infrastructure Innovation and Finance Fund, to finance major transportation projects, an additional $1 billion for the development of high-speed rail, more than $500 million to help state and local governments make more sustainable transportation investments as part of the administration’s multi-agency Sustainable Communities Partnership, and $30 million for the Federal Transit Administration to strengthen safety oversight and hire additional staff for that purpose.  The proposal does not include measures to address the Highway Trust Fund, which is expected to end FY2010 with a shortage of $1 billion, or to provide funding for the implementation of positive train control technology as mandated by the Rail Safety Improvement Act of 2008.

President Obama and Vice President Biden announced the award of nearly $8 billion in federal funds to initiate the planning and development of high-speed rail corridors around the nation.  Funding had been authorized in the American Recovery and Reinvestment Act.  More than half will be aimed at developing new, large-scale, high-speed rail programs.  California received the largest single share—up to $2.25 billion—for its planned project to connect Los Angeles to San Francisco and points in between with trains running up to 220 miles per hour.  Florida will receive up to $1.25 billion to develop a new high-speed rail corridor between Tampa and Orlando with trains running up to 168 miles per hour.  Approximately $1.1 billion has been allocated to upgrade existing track between Chicago and St. Louis to permit trains to travel at up to 110 miles per hour.  The remaining $3.4 billion is allocated among projects to serve corridors in Madison-Milwaukee-Chicago; Charlotte to Washington, DC; Eugene, OR, to Seattle; Detroit to Chicago; Cleveland to Cincinnati; and in the Northeast.

The Surface Transportation Board (STB) heard an oral argument in a case challenging the validity of a mechanism used for nearly 20 years by public transit and commuter operator agencies to acquire active freight rail corridors free of STB oversight.  Since 1991, the Board has authorized agencies operating passenger service to acquire the real estate and physical assets in a rail corridor without taking on the associated common carrier obligation as long as another party remains responsible for conducting freight service on the line.  A group of unions has argued that the Interstate Commerce Act and Interstate Commerce Commission Termination Act do not create separate interests in the operating rights and physical plant of a line of railroad, and that acquisition of the physical assets therefore is subject to STB jurisdiction.  If the Board adopts the unions’ arguments and limits or reverses its existing approach, the impact on future transactions by passenger rail agencies to acquire active freight rail lines will be significant.

The National Transportation Safety Board (NTSB) announced that it completed its investigation into the fatal September 12, 2008, collision between a passenger commuter train and freight train in Chatsworth, California.  In its synopsis of findings and recommendations, the NTSB recommended that inward- and outward-facing cameras and audio recorders be installed in all controlling locomotive cabs and cab car operating compartments in order to verify that train crew actions are in accordance with safety rules and procedures.  The NTSB recommended that such devices have a minimum 12-hour continuous recording capability, that the recordings be easily accessible for review, and that railroads regularly review such recordings in conjunction with other performance data.

The Federal Railroad Administration (FRA) issued its final rule, including detailed technical specifications, for implementing positive train control (PTC) on all commuter and intercity passenger rail lines, and a significant subset of freight rail corridors.  PTC is an automated, signal-based system of automatically controlling the movement of trains to prevent collisions and the incursion of trains into restricted zones.  The mandate to install PTC appeared in the Rail Safety Improvement Act of 2008, and requires PTC to be installed by December 31, 2015, on each main line over which poison- or toxic-by-inhalation hazardous materials are transported, each main line used for regularly provided intercity or commuter passenger service (subject to certain exceptions), and any additional line of railroad as the FRA may require.  FRA has solicited further comment to address the clarity, certainty, and transparency of the criteria governing relief from the requirement to install PTC.

The Federal Railroad Administration (FRA) released its final rule governing the structural capacity of cab cars and multiple-unit locomotives to withstand head-on impacts.  Such cars incorporate an engineer’s cab and passenger compartment for use as the lead car in a passenger consist.  Because trains configured with leading cab cars or multiple-unit locomotives have no traditional locomotive in the lead, the lead car must be able to withstand a head-on collision.  The final rule is based on structural modeling and full-scale field testing and requires the equipment to absorb collision energy and maintain sufficient integrity in crashes of a specified magnitude and speed to protect the interior space of the car.  The final rule applies to cab cars and multiple-unit locomotives in service at speeds not exceeding 125 mph.  The FRA rejected analogous European crashworthiness standards as inapplicable because of the lighter weight and differing collision characteristics used to formulate the European rule.

Firm partners Sarah Rockwell and Lori Potter have both been listed in the “Top 25 Women Lawyers” list for Colorado Super Lawyers 2010.  The Top 25 Women list appears in Colorado Super Lawyers 2010 magazine, which is a section of the Super Lawyers special section of 5280 magazine.

On December 21, 2009, the Department of Transportation issued final rules prescribing air carrier responsibilities in the event of lengthy tarmac delay.  The rules will require U.S. air carriers operating aircraft designed for thirty or more seats to develop and implement contingency plans to address extended delay.  Air carriers generally will have to deplane passengers after three hours and provide food and water after two hours.  The rules also require air carriers to develop and publish customer service plans.

Kaplan Kirsch & Rockwell attorneys Steve Kaplan and Lori Potter are highlighted in this article about the Firm’s complex and varied land use practice.